United States of America, Plaintiff-appellant, v. Harold L. Von Harten, Defendant-appellee.united States of America, Plaintiff-appellant, v. Earl Widener, Defendant-appellee.united States of America, Plaintiff-appellant, v. John Fernandez and Ray Wesley Vaughn, Jr., Defendants-appellees, 825 F.2d 1493 (11th Cir. 1987)

These three consolidated cases arise out of the "Freedom Flotilla" of the summer of 1980 in which more than 100,000 Cuban nationals were evacuated from Cuba to the United States. See generally Lyden v. Howerton, 783 F.2d 1554, 1556 (11th Cir. 1986); Pollgreen v. Morris, 770 F.2d 1536, 1538-40 (11th Cir. 1985). The defendants in these cases operated privately-owned vessels that participated in the flotilla. Soon after they returned to the United States, the Immigration and Naturalization Service (INS) determined that, in violation of 8 U.S.C. § 1323(a) (1982),¹  the defendants had unlawfully transported into the United States aliens who did not hold valid unexpired visas. In accordance with 8 U.S.C. § 1323(b) (1982),²  the defendants were fined $1000 for each alien they transported.

When the defendants failed to pay their fines, the United States brought separate civil actions in the district court to collect the fines pursuant to 8 U.S.C. § 1330 (1982).³  In their answers, the defendants denied that they had brought into the United States Cuban nationals who did not have valid unexpired visas as required by 8 U.S.C. § 1323(a). The defendants also raised in their answers the affirmative defenses of duress and coercion. Each defendant later filed a motion for summary judgment, claiming in support that he "could not admit that the Cuban Nationals 'did not have required valid unexpired visas, in violation of 8 U.S.C. 1323(a)' because he ha [d] no knowledge of whether the aliens had valid visas"; furthermore, each defendant contended that he was not subject to the fine "due to the valid uncontradicted defenses [of duress and coercion] which were raised by the Defendants during the administrative proceedings below."

The district court granted summary judgment for the defendants in United States v. Fernandez, No. 86-5164, and in United States v. Widener, No. 86-5151. Several months later, the district court held a hearing simultaneously on the Government's motions for rehearing in those two cases and on the Government's cross-motion for summary judgment in United States v. Von Harten, No. 86-5150. The district court denied the Government's motions for rehearing in Fernandez and in Widener and granted the defendant's motion for summary judgment in Von Harten. The sole reason the district court offered for its decisions was the following: " [T]he [Government] failed to present any evidence to support its allegation that the persons transported by the Defendant [s] were undocumented aliens." Because we believe that the district court inappropriately required the Government to relitigate the administrative determination assessing a fine, we conclude that the court erred when it granted summary judgment.

In all three cases, the immigration officer who conducted personal interviews with the defendants concluded that " [t]he facts in this case are not in dispute"⁴  and found the following: "The record establishes that the passengers brought by the carrier to the United States from Cuba were aliens; that the aliens were not in possession of valid unexpired visas; and that visas were required under the Immigration and Nationality Act or the regulations issued thereunder." The immigration officer rejected the defendants' defenses of duress and coercion. In each case, the INS district director adopted the immigration officer's recommendation that a fine be imposed on the defendants. The defendants in United States v. Von Harten and in United States v. Fernandez exercised their right to appeal the district director's order to the Board of Immigration Appeals (BIA).⁵ 

The BIA dismissed the appeal in those two cases. In United States v. Fernandez, the BIA concluded that the Government had established violations of 8 U.S.C. § 1323(a) because "the record indicates that the carrier brought 294 undocumented Cuban nationals to the United States." In United States v. Von Harten, the BIA stated that the Government had established violations of 8 U.S.C. § 1323(a) because " [t]he record in this case contains 171 Forms I-94 (Arrival/Departure Records) which indicate that the carrier brought that number of Cuban nationals to the United States, and that none of them was in possession of a visa or other document authorizing entry." In both cases, the BIA rejected the defendants' defenses of duress and coercion.

Neither the language nor the legislative history of 28 U.S.C. § 1330 delimits the scope of judicial review of an administrative decision in a suit brought by the United States to collect a fine imposed by INS under 8 U.S.C. § 1323. Nor has the case law directly addressed the question whether such a collection proceeding initiated by the Government requires a de novo hearing or is governed by the same standard of judicial review as when review is sought of other immigration decisions. The statutory scheme governing penalties for violations of the immigration laws, 8 U.S.C. §§ 1321-1330 (1982), does not authorize direct judicial review of INS determinations.⁶  Absent a congressional mandate for de novo review, we conclude, and the parties agree, that the district courts must accord INS the deference that it is normally due, whether the carrier or the Government initiates the court proceeding. See 2 C. Gordon & H. Rosenfield, Immigration Law & Procedure Sec. 9.19 (1987).

Factual questions, such as whether the aliens transported by the defendants held valid unexpired visas, thus may not be decided de novo by the district court in a collection suit brought by the Government unless (1) INS' factfinding procedures were inadequate, or (2) issues not before INS are raised to enforce the INS determination. See Pollgreen v. Morris, 770 F.2d 1536, 1544-45 (11th Cir. 1985) (citing Camp v. Pitts, 411 U.S. 138, 141-42, 93 S. Ct. 1241, 1243-44, 36 L. Ed. 2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)); see also Lyden v. Howerton, 783 F.2d 1554, 1557 (11th Cir. 1986). In this case, the district court concluded that the Government "failed to present any evidence to support its allegation that the persons transported by the Defendant [s] were undocumented aliens." Because this is an inadequate explanation for not giving appropriate deference to the administrative findings of INS, we vacate the district court's judgments and remand the cases for further proceedings.

Finally, we note that if the district court concludes that INS' factual determinations imposing fines against the defendants must stand, the district court should remand the cases to INS because the agency, in light of a subsequent Eleventh Circuit case, see Pollgreen v. Morris, 770 F.2d 1536 (11th Cir. 1985), erred as a matter of law when it held that the defendants' defenses of duress and coercion were insufficient as a matter of law.

VACATED and REMANDED.